Rittenhouse Row v. Aspite

OPINION BY

Dominic Aspite and 1420 Chestnut Street Associates (collectively, Aspite) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), which reversed a decision of the Philadelphia Zoning Board of Adjustment (ZBA) granting his application for a use variance. Aspite questions whether the trial court erred in concluding that he failed to establish a hardship. Discerning no error, we affirm the trial court’s order reversing the ZBA.

At issue is the permitted use of the first floor of a multi-story structure located at 1420-22 Chestnut Street (property). The property is located within a C-4 commercial use area in the City of Philadelphia and falls under the protective umbrella of the Center City Overlay.1 The Overlay is a creature of an Ordinance that when first enacted in 2000 pertained exclusively to the Rittenhouse Row area, and through *882subsequent amendment has been widened to include Chestnut Street between Broad and Twentieth Streets. Philadelphia City Council enacted the Overlay to maintain the existing character of a designated area, to attract and promote certain specialty retailers, and to encourage the retailers to locate within a designated area. Philadelphia Zoning Code § 14-1607.1(l)(a). The Overlay regulates the use of a building.

Section 14-1601.1 of the Philadelphia Zoning Code [Rittenhouse Overlay] provides in pertinent part:

(2) Uses Prohibited on the Ground Floor

(c) Manicure/nail salon;

(d) Retail sales of drugs;

(e) Retail sales of general merchandise;

(f) Retail sales of groceries;

(j) Retail sales of variety store merchandise.

Section 14-1607 of the Philadelphia Zoning Code [Center City Overlay] states in pertinent part:

(3) Prohibited Uses. In any building or upon any land abutting Chestnut Street or Walnut Street between Front Street and the Schuylkill River and Broad Street between South Penn Square and Washington Avenue and Market Street between Front Street and Fifth Street, the following uses shall be prohibited:

(a) Amusement arcades;

(b) Any use regulated by Section 14-1605, Regulated Uses;

(c) Carwash;

(d) Hand laundry;

(e) Non-accessory or outdoor advertising signs;

(f) Open air parking lots;

(g) Outdoor sales or storage including outdoor use of coin operated machines which dispense food or drink, but not including open air cafes within the property line and not including any open air cafes on Broad Street between South Penn Square and Washington Avenue;

(h) Parking as the sole use of a property;

(i) Repair of motor vehicles;

(j) Restaurants, cafes, coffee shops and other similar establishments for the sale and consumption of food and/or beverages, with drive-in or take-out service (sale of food and/or beverages to be consumed outside the confines of the premises); provided that takeout restaurants with a minimum of 20 seats for indoor dining of patrons shall not be prohibited along Market Street between Front Street and Fifth Street....

In early 2004 Aspite applied to Philadelphia’s Department of Licenses and Inspections (L & I) for a use variance seeking to lease the first floor of the property to 7-Eleven. L & I denied the request based on its determination that 7-Eleven was a convenience store and was not a permitted use within the Overlay district. Aspite appealed that decision to the ZBA contending that the application of the above two sections to the 1420-22 Chestnut Street property (property) precluded the opening of a convenience store such as 7-Eleven within the Overlay. That preclusion, argued Aspite, was so restrictive that when applied, it rendered the first floor of the property unmarketable and caused As-pite to suffer a hardship.

In support of that position, before the ZBA Aspite introduced evidence that prior to enactment of the Chestnut Street Over*883lay the property had been vacant for several years. Aspite explained that over the years,2 the only businesses that had expressed an interest in leasing the space were businesses that under the current Code would be prohibited uses. Aspite testified that since the enactment of the Center City Overlay in 2004, 7-Eleven had expressed a desire to lease the space. As-pite submitted evidence that if 7-Eleven were permitted to operate, there would be no cooking on the premises, trash would be stored inside and taken out by 7-Eleven employees, and trash pick-up would occur at least three times a week between midnight and 6AM. There was also general testimonial evidence that 7-Eleven would be beneficial to the area. Finally, it was argued that applicable use prohibitions were a hardship and that the property was not otherwise marketable.

Objecting to Aspite’s request for a use variance was Don Davidow, individually and on behalf of Rittenhouse Row Associates. In addition, area neighbors voiced their objections which echoed the sentiments of Davidow and Rittenhouse Row Associates that the proposed use would not compliment the neighborhood. The ZBA was not persuaded by the testimony of Objectors and granted the use variance. Rittenhouse Row Associates appealed to the trial court.

Before the trial court, Rittenhouse Row Associates argued that the ZBA’s finding of hardship was not supported by substantial evidence. In response, Aspite argued that substantial evidence of record supported the ZBA’s finding of hardship, and further, even if hardship had not been proven, the variance should be permitted as the Overlay is unconstitutional, in that it is exclusionary and violative of equal protection, because it is not rationally related to a valid governmental purpose.

The trial court, without taking additional evidence, reversed the ZBA, concluding that Aspite had not established an unnecessary hardship. The trial court further concluded that there was no constitutional violation as the Overlay was not unreasonable and was neither arbitrary nor exclusionary. Aspite took an appeal of the trial court’s decision to this Court.

Initially we note that because the trial court took no additional evidence, this Court’s review is limited to a determination of whether the Board abused its discretion or committed an error of law. Hitz v. Zoning Hearing Board of South Annville Township, 734 A.2d 60, 65 n. 9 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 562 Pa. 676, 753 A.2d 821 (2000). “The ZHB [Board] abuses its discretion if its findings are not supported by substantial evidence.” Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

First we address the constitutional claim. Aspite contends that the Overlay is unconstitutional in that it violates equal protection and due process of law. Aspite also contends that the Ordinance is not rationally related to a valid governmental purpose. As explained by our Supreme Court in In Re Realen Valley Forge Greenes, 576 Pa. 115, 838 A.2d 718, 728 (2003):

“[W]hen determining the validity of zoning ordinances, a zoning ordinance must be presumed constitutionally valid un*884less a challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve”

Among other reasons, an ordinance will be found to be unreasonable and not substantially related to a police power purpose if it is shown to be unduly restrictive or exclusionary. Similarly, an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment. Moreover, in reviewing an ordinance to determine its validity, courts must generally employ a “substantive due process inquiry, involving a balancing of landowners’ rights against the public interest, sought to be protected by an exercise of the police power.”

Moreover,

[t]he substantive due process inquiry, ... must accord substantial deference to the preservation of rights of property owners, within constraints of the ancient maxim of our common law, sic utere tuo ut alienum non laedas. 9 Coke 59 — So use your property as not to injure your neighbors.

(quoting Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 452 A.2d 1337, 1341-42 (1982)); and, C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002).

This Court agrees with the trial court’s analysis that the prohibitions set forth in the Rittenhouse Overlay/Center City Overlay are for the purpose of preserving the historic and artistic value of the Center City Arts District. Additionally, the Overlay benefits the business owners, the visitors, and the citizens of Philadelphia. Contrary to Aspite’s argument, the Overlay does not promote high-end stores to the exclusion of convenience stores. Rather, the Overlay attempts to control the overall commercial development of the Center City area, and that is a permissible government function. Likewise, the Overlay does not apply exclusively to Aspite’s property. Instead, the Overlay is applicable to all properties within the designated area. - We agree with the trial court that Aspite has not put forth evidence establishing that the Ordinance is unreasonable and not substantially related to a police power purpose because Aspite has not shown the Ordinance to be unduly restrictive or exclusionary. Furthermore, the Ordinance treats all landowners equally. Thus, there is no disparate treatment and the Ordinance cannot be found to be arbitrary. We therefore conclude that As-pite did not substantiate his challenge to the constitutionality of the Ordinance.

Aspite next contends that he met all criteria required for the granting of a variance. To establish entitlement to a variance, an applicant must prove, inter alia, the following: (1) the zoning Ordinance imposes unnecessary hardship resulting from the unique physical characteristics of the property, as distinguished from hardship arising from the impact of the zoning regulation on the entire district; (2) the alleged hardship is not self-inflicted; and (3) the required variance will not destroy the character of the neighborhood, nor be detrimental to the public welfare. Section 910.2 of the Pennsylvania Municipalities Planning Code;3 Valley View. An *885applicant’s burden is a heavy one, and a variance should be granted sparingly and only under exceptional circumstances. Appeal of Lester M. Prange, Inc., 166 Pa.Cmwlth. 626, 647 A.2d 279 (1994).

To establish unnecessary hardship, the applicant must demonstrate that due to its physical characteristics, the property cannot be used for the permitted purpose or could only conform to such purpose at a prohibitive expense, or, that the property has either no value or only a distress value for any permitted purpose. Isaacs v. Wilkes-Barre City Zoning Hearing Board, 148 Pa.Cmwlth. 578, 612 A.2d 559 (1992).

In this matter, Aspite failed to present any evidence of unique physical conditions that prevented a reasonable use of the property. “While Aspite may suffer a reduction of income upon denial of a variance, economic hardship is insufficient to establish unnecessary hardship justifying a grant of a variance. Valley View. Unnecessary hardship is shown only where the evidence establishes that compliance with the zoning ordinance could render the property practically useless. Smith v. Zoning Hearing Board of Borough of Bellevue and Suburban General Hospital, 152 Pa.Cmwlth. 427, 619 A.2d 399 (1992). Aspite failed to present such evidence.

However, assuming arguendo, Aspite had established a hardship, Aspite still had to establish that the proposed use was not contrary to the public interest. The preservation of the existing character of the designated area and the promotion of specialty retailers in the designated area is a stated goal of the Ordinance. The Overlay allows for the growth of businesses that support the historic and cultural character of the surrounding area. Code § 14-1670.1(l)(f). Herein, the evidence of record is testimonial evidence to the effect that Aspite, if granted a variance, would comply with all City ordinances and regulations. However, there is no evidence that the opening of a 7-Eleven compliments the public interest or supports the historic and cultural character of the designated area. Again, Aspite has failed to sustain his evidentiary burden.

Accordingly, the order of the trial court is AFFIRMED.

ORDER

AND NOW, this 19th day of December 2006, the Order of the Court of Common Pleas of Philadelphia County entered in the above-captioned matter is AFFIRMED.